Justification Review. Justice Administrative Commission State Attorneys Public Defenders

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1 Justification Review Justice Administrative Commission s s Report No December 2001 Office of Program Policy Analysis and Government Accountability an office of the Florida Legislature

2 OPPAGA provides objective, independent, professional analyses of state policies and services to assist the Florida Legislature in decision making, to ensure government accountability, and to recommend the best use of public resources. This project was conducted in accordance with applicable evaluation standards. Copies of this report in print or alternate accessible format may be obtained by telephone (850/ or 800/ ), by FAX (850/ ), in person (Claude Pepper Building, Room 312, 111 W. Madison St.), or by mail (OPPAGA Report Production, 111 W. Madison St., Tallahassee, FL ). Florida Monitor: Project conducted by Richard Dolan, Cynthia Cline, Maryann Ferencak, and Sabrina Hartley Kathy McGuire, Staff Director (850/ ) John W. Turcotte, OPPAGA Director

3 The Florida Legislature OFFICE OF PROGRAM POLICY ANALYSIS AND GOVERNMENT ACCOUNTABILITY John W. Turcotte, Director December 2001 The President of the Senate, the Speaker of the House of Representatives, and the Joint Legislative Auditing Committee I directed our office to examine the Justice Administrative Commission and the Offices of the s and s. OPPAGA reports findings and recommendations required by the Government Performance and Accountability Act of Richard Dolan, Cynthia Cline, Maryann Ferencak and Sabrina Hartley conducted this examination under the supervision of Kathy McGuire. We wish to express our appreciation to the staff of the Justice Administrative Commission, State Attorneys, and s for their cooperation and the many courtesies shown us during the course of the examination. Sincerely, John W. Turcotte Director

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5 Table of Contents Executive Summary... i Chapter 1: Introduction... 1 Chapter 2: Performance of the Justice Administrative Commission... 6 Chapter 3: Performance of the Offices of s and s... 9 Chapter 4: Improving the Operations of s and s Chapter 5: Revision 7 to Article V Issues Appendix A: Statutory Requirements for Program Evaluation and Justification Review Appendix B: Catalog of Special Programs Appendix C: Agency Responses... 72

6 Executive Summary Justification Review of the Justice Administrative Commission, s, and s Purpose Purpose Background OPPAGA is required to complete a Program Evaluation and Justification Review of each state agency program during its second year of operating under a performance-based program budget. However, we conducted our review of the state attorneys, public defenders, and Justice Administrative Commission one year ahead of schedule to provide the Legislature information for its deliberations concerning Revision 7 to Article V of the Florida Constitution. Because the issues related to these entities are so intertwined, our review conclusions are presented in one report. In November 2001, we also published an overview of Revision 7 to Article V issues, Many Article V Trial s Funding Issues Need to Be Resolved, Report No Background Chapter 26, Florida Statutes, divides the state into 20 judicial circuits and the Florida Constitution requires voters in each circuit to elect a state attorney and public defender. The state attorneys prosecute criminal and some civil matters in their circuits on behalf of the state, while public defenders provide legal representation to indigent defendants. Public defender appellate lawyers located in 5 court circuits represent public defender cases that progress to appeal in all 20 circuits. Cases pertaining to the death penalty are referred to the capital collateral regional counsels for representation following action by the Florida and U.S. Supreme courts to uphold the sentences. The Justice Administrative Commission, created by Ch. 43, Florida Statutes, provides budgetary, accounting, and personnel support to the 20 state attorney offices, 20 public defender offices, and 3 capital collateral regional counsels. In addition to providing these services, the commission provides a single point of contact from which the Legislature and state i

7 Executive Summary agencies can obtain administrative information concerning the state attorneys, public defenders, and capital collateral regional counsels. Program Performance The commission is well regarded Turnover is high Salaries are lower than state agency or private attorney salaries Public attorneys are less costly than outsourcing Justice Administrative Commission Performance. The commission is well regarded by the offices it serves for its accuracy, timeliness, and expertise. Based on the commission s recent efforts to streamline accounting work by acquiring an automated system to reduce data entry, we identified 1.4 accounting positions that may no longer be necessary. We recommend that the 1.4 positions be eliminated beginning in the fiscal year for an annual cost savings of $40,500. and Performance. The turnover rate for state attorney and public defender staff is high. According to Justice Administrative Commission records, the turnover rate for Fiscal Year was 22% for assistant state attorneys and 23% for assistant public defenders. Only 54% of assistant state attorneys and 46% of assistant public defenders are retained for three years or more from date of hire. A 2000 study by the National Association of Law Placement analyzed turnover data on nearly 5,500 lawyers from the graduating classes of The study found that 8.3% of new associates depart their law firms before the end of the first year, and 38.3% depart by the third year of employment. As noted above, the turnover rate in state attorney and public defender offices is higher than this national rate. Assistant state attorney and public defender starting salaries are lower than state agency and private sector attorney starting salaries. When the Legislature increases assistant state attorney and public defender starting salaries to $35,931 in January 2002, they will be in line with state agency attorney salaries. However, this starting salary will still be generally less than private sector attorney starting salaries. One policy question that is often raised is whether it would save the state money to outsource more legal work, particularly for public defender cases. However, at $25 an hour, including benefits, the new salary rate is significantly lower than the $50 to $75 rate the counties pay private attorneys to represent defendants when public defenders cannot take a case due to an ethical conflict. Improving and Operations. State attorneys and public defenders could improve operations in the four areas discussed below. Develop a plan and schedule to integrate technology The Florida Association, the Florida Prosecuting Attorneys Association, and the Joint Article V Committee should work together to develop a plan and schedule to integrate technology within ii

8 Executive Summary and among circuits. Currently, the level of technology varies from circuit to circuit. Some circuits have automated systems that allow for information sharing among the clerk of the court, the jail, the state attorney, and the public defender, while other circuits still rely on manual systems or use independent automated systems. Integrating criminal justice technology can reduce costs and improve efficiency by eliminating duplicative entry of common data, reducing the opportunity for data entry errors, allowing staff to perform other work, and enhancing the timeliness of information. Reduce the cost of online legal research Appoint an indigency examiner administrator Reclassifying some offenses could reduce costs State attorneys and public defenders should work together to take advantage of group purchasing discounts for subscriptions to online legal research services. Current state attorney and public defender subscription prices range from $50 to $150 per password per month. The average cost per password per month is $73. At the present time, online legal research costs the offices approximately $550,000 annually. However, the state attorneys and public defenders have begun working as a group to share information about legal research options and costs. By pooling their purchasing power and negotiating as a group, it is likely that the rate for online service can be reduced substantially. The court negotiated a group purchase of online legal services in the $30 per password per month range. If the state attorneys and public defenders negotiate a similar rate, they could save over $300,000 annually. Other entities, such as the capital collateral regional counsels, could also benefit from participating in the user group. The Legislature has eliminated funding for indigence examiner positions. If the Legislature reauthorizes these positions in the future, it should fund a program administrator within the Office of the State s Administrator to improve and standardize indigency examiner operations. The 1995 Legislature created an indigency examiner position in each of the 20 court circuits to verify defendant eligibility for a public defender. There was great variation in how examiners in the 20 circuits obtained and verified indigency and the impact of their reviews was uncertain. Indigency examiners have the potential to prevent ineligible persons from being represented by public defenders and thereby reduce public defender workloads, but would require additional direction to be effective on a statewide basis. State attorneys and public defenders should work with the Legislature to identify misdemeanors and felonies that should be considered for reclassification. Reclassifying some non-violent criminal offenses could reduce court workloads and costs. Though reclassifying some crimes from felonies to misdemeanors would not significantly reduce caseloads, since defendants may still go to court and may be eligible for public counsel, reclassification would likely reduce the amount of time required to handle these cases. Reclassifying some misdemeanors as civil infractions would reduce public defender caseloads, as defendants would iii

9 Executive Summary no longer be eligible for public counsel absent the threat of imprisonment. This reclassification would also reduce state attorney and court workloads, as defendants would pay a fine instead of going to court. If select non-violent misdemeanors were reclassified as civil infractions with a fine penalty, both the state and counties could receive increased revenue. Revision 7 to Article V Issues. Some of the day-to-day operations of the state attorneys and public defenders are affected by issues pertaining to Revision 7 to Article V.! Local governments currently pay for and monitor contracted conflict attorneys when public defenders cannot take a case due to ethical conflict or work overload. When the state assumes financial responsibility for these lawyers, it will need to develop a new system of oversight.! It is not clear whether some state attorney and public defender costs, such as library services, will remain the responsibility of local government or be paid by the state.! State attorneys and public defenders participate in 197 special programs that are intended to improve the efficiency or effectiveness of the court system. It is unclear whether the state should fund some of these programs after the implementation of Revision 7 to Article V. Agency Response The Justice Administrative Commission, the Florida Prosecuting Attorneys Association, the Florida Association, Inc., and the Office of the State s Administrator provided written responses to our preliminary and tentative findings and recommendations. (See Appendix C, page 72, for these responses.) iv

10 Chapter 1 Introduction Purpose Background This report presents the results of our program evaluation and justification review of the Justice Administrative Commission and Offices of s and s. We conducted our review of these programs one year ahead of schedule to provide the Legislature information for its deliberations concerning Revision 7 to Article V of the Florida Constitution. Because the issues related to the state attorneys, public defenders, and Justice Administrative Commission are so intertwined, we have issued our findings in a single report. In November 2001 we also published another report, Many Article V Trial s Funding Issues Need to Be Resolved, Report No , which provides an overview of Revision 7 to Article V issues. Article V of the Florida Constitution establishes the judicial branch of state government and defines the elements of the state court system, including state attorneys and public defenders. Chapter 26, Florida Statutes, divides Florida into 20 judicial circuits, as shown in Exhibit 1; the constitution provides that voters in each circuit shall elect a state attorney and a public defender. State attorneys are the chief prosecutors Public defenders represent indigent defendants The state attorneys prosecute criminal and some civil matters in their circuits on behalf of the state. As the chief prosecutors of the trial courts, state attorneys determine whether the offense and the evidence are sufficient to warrant filing charges against alleged law violators. State attorneys work closely with law enforcement and employ investigators as well as lawyers. In Fiscal Year , law enforcement agencies and the public referred 1,474,415 felony, misdemeanor, and juvenile cases to state attorneys. The state attorneys transfer cases that progress to the appeals courts to the Attorney General to handle. The public defenders provide legal representation for any person determined by the court to be indigent who is (1) charged with a felony; (2) charged with a misdemeanor which could be punished by incarceration; (3) alleged to be a delinquent; or (4) subject to a petition for involuntary commitment as mentally ill or developmentally disabled and 1

11 Introduction a danger to him or herself and others, or as a sexual predator. 1 In Fiscal Year , public defenders represented clients in 592,248 cases. Exhibit 1 Florida Comprises 20 Judicial Circuits st - Escambia, Okaloosa, Santa Rosa, and Walton 2nd - Franklin, Gadsden, Jefferson, Leon, Liberty, and Wakulla 3rd - Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee, and Taylor 4th - Clay, Duval, and Nassau 5th - Citrus, Hernando, Lake, Marion, and Sumter 6th - Pasco and Pinellas 7th - Flagler, Putnam, St. Johns, and Volusia 8th - Alachua, Baker, Bradford, Gilchrist, Levy, and Union 9th - Orange and Osceola 10th - Hardee, Highlands, and Polk 11th - Dade 12th - DeSoto, Manatee, and Sarasota 13th - Hillsborough 14th - Bay, Calhoun, Gulf, Holmes, Jackson, and Washington 15th - Palm Beach 16th - Monroe 17th - Broward 18th - Brevard and Seminole 19th - Indian River, Martin, Okeechobee, and St. Lucie 20th - Charlotte, Collier, Glades, Hendry, and Lee Source: Chapter 26, Florida Statutes. Public defender appellate lawyers represent public defender cases that progress to appeal. Chapter 27, Florida Statutes, designates one public defender s office in each of the five District of Appeal regions to handle appellate cases for the region. 2 In Fiscal Year , public defenders represented clients in 5,537 appellate cases. Cases pertaining to the death penalty are referred to the capital collateral regional counsels for representation following action by the Florida and U.S. Supreme s to uphold the sentences. 3 1 The United States Supreme established the right of indigent persons to an attorney in a 1963 Florida case known as Gideon v. Wainwright. 2 Public defender appellate lawyers are located in the 2 nd, 7 th, 10 th, 11 th, and 15 th circuits. 3 Capital collateral regional counsels are reviewed in OPPAGA s Performance of Collateral Counsels Improved; Registry Accountability Needs to Be Revisited, Report No , November

12 Introduction Justice Administrative Commission is a liaison The Justice Administrative Commission, created by Ch. 43, Florida Statutes, provides budgetary, accounting, and personnel support to the offices of 20 state attorneys, 20 public defenders, and 3 capital collateral regional counsels. 4 The Justice Administrative Commission is governed by 2 state attorneys and 2 public defenders appointed by their respective professional associations. 5 Resources For Fiscal Year , the Legislature appropriated over $436 million and 8,000 full-time equivalent employee positions (FTE) to the state attorneys, public defenders, and Justice Administrative Commission, as shown in Exhibit 2. Exhibit 2 Legislative Appropriations Have Increased Over the Past Three Years Fiscal Year Program s $276,096,986 5,305 FTE $288,356,305 5,520 FTE $290,085,816 5,525 FTE s $136,703,398 2,555 FTE $144,762,592 2,634 FTE $144,780,592 2,634 FTE Justice Administrative Commission $1,590, FTE $1,769, FTE $1,761, FTE Total $414,390,421 7,890 FTE $434,887,986 8,185 FTE $436,628,048 8,191 FTE Source: General Appropriations Acts. Counties also pay state attorneys and public defender expenses As required by Ch. 27, Florida Statutes, county governments pay specified state attorney and public defender costs. These include expenses for office space, utilities, telephone services, custodial services, library services, transportation services, and communication services. The counties also pay consultation fees for expert witnesses, travel expenses, and court reporter fees. In addition, when public defenders cannot represent a client due to an ethical conflict of interest or work overload, the counties pay for a private attorney to take over the case. There is no current reliable data on the amount of county contributions. Although counties report expenditures using the Uniform Chart of Accounts, the data submitted is derived from dissimilar methods of accounting for some costs, such as administrative costs. Neither the Auditor General nor the Comptroller has audited these expenditures, so 4 Some of these offices perform some administrative functions independently. Two capital collateral regional counsels conduct their own voucher payment processing, as does the state attorney office in the 11 th Circuit (Dade County). 5 The Florida Prosecuting Attorneys Association and the Florida Association, Inc. 3

13 Introduction the data is not reliable at this time. The best information currently available is county contributions specific to state attorneys and defense attorneys (public defender and conflict attorney costs) from county Fiscal Year , as shown in Exhibit 3. 6 In that year, counties provided $19,437,763 for state attorneys and $57,635,718 for defense attorneys. This data does not include costs for clinical evaluations or expert witness fees, which cannot be attributed to state attorneys or defense attorneys. During that period, counties expended $4,351,377 for clinical evaluations and $3,519,712 for expert witness fees. Exhibit 3 Counties Also Contribute to s and Defense Attorneys 1 County Fiscal Year Expenditures for Defense Circuit Expenditures for s Attorneys 1 st $ 1,047,494 $ 2,146,649 2 nd 189,855 1,328,392 3 rd 36,653 35,303 4 th 1,940, ,651 5 th 355,979 1,543,717 6 th 343,311 1,235,100 7 th 830,753 1,244,072 8 th 321,708 1,488,384 9 th 810,040 7,397, th 321,825 1,366, th 3,878,970 15,081, th 674,787 2,253, th 1,088,680 2,058, th 359, , th 1,397,826 5,356, th 124, , th 2,613,000 6,812, th 1,046,978 2,481, th 1,031,702 1,914, th 1,023,686 2,122,487 Total $19,437,763 $57,635,718 1 The following counties did not report expenditure data for state attorneys and defense attorneys: Walton, Wakulla, Franklin, Columbia, Lafayette, Suwannee, Clay, Sumter, Baker, Hardee, Calhoun, Gulf, and Hendry. The following counties did not report for the entities noted: Liberty (defense attorneys), Gadsden (state attorney), Madison (state attorney), Putnam (state attorney), and Glades (state attorney). Source: OPPAGA analysis of Department of Banking and Finance Uniform Chart of Account data for county Fiscal Year More recent data is not available. 6 Conflict attorneys represent indigent defendants when the public defenders cannot take the case due to ethical conflict of interest or work overload. 4

14 Introduction Report organization State and county responsibilities for paying state attorney and defense attorney costs will shift in 2004 as a result of Revision 7 to Article V of the state constitution. This revision, passed in 1998, requires the state to assume some costs of the state court system that have been previously paid by county governments.! Chapter 2 discusses the performance of the Justice Administrative Commission.! Chapter 3 discusses the performance of the Offices of s and s.! Chapter 4 identifies options for improving operations of the Offices of s and s.! Chapter 5 identifies Article V, Revision 7 issues pertaining to state attorneys and public defenders. Report Recommendations To improve Justice Administrative Commission operations,! and as a result of technology upgrades, 1.4 accountant positions should be eliminated during the fiscal year, which would provide a savings of $40,500 annually. To improve state attorney and public defender operations,! the Florida Association, the Florida Prosecuting Attorneys Association, and the Joint Article V Committee should work together to develop a plan for integrating technology within and among circuits;! public defenders and state attorneys should work together to take advantage of group purchasing discounts for online legal research services; better rates could reduce statewide costs by over $300,000 annually;! the Legislature could create an Indigency Examiner Program administrator within the Office of State s Administrator to improve review of indigency eligibility for representation by a public defender; and! legislative criminal justice, fiscal, and transportation committees, along with state attorneys, public defenders, and other stakeholders, should identify misdemeanors and felonies that should be considered for reclassification. Regarding Revision 7 to Article V changes,! the Legislature should establish an independent commission to oversee the appointment, payment, and performance of conflict and dependency counsel;! the new appointed counsel oversight system should include specific criteria regarding appointment, payment, and data collection;! the Legislature should revise ss , , and , Florida Statutes, to specify that funds collected for appointed counsel and related costs be paid to the state rather than the counties;! the Legislature should clarify in Ch.27, Florida Statutes, whether the state or the counties will be responsible for funding transportation, travel, and library (including online legal research) costs; and! administrators of some special programs that the Legislature and the court have not defined as essential court functions but improve the efficiency or effectiveness of the courts should collect information to provide the Legislature if they wish to request state funding. The Legislature should designate a workgroup to help develop standards and protocol for collecting cost and performance data from these programs. Information that programs should provide includes clear program goals, clear performance measures and standards against which performance can be measured, cost and unit cost information, and data describing basic indicators of need and numbers of participants and completers. 5

15 Chapter 2 Performance of the Justice Administrative Commission The commission provides administrative services and is a liaison between the state and independent legal entities The Justice Administrative Commission performs personnel, budgeting and accounting functions for state attorneys, public defenders, and capital collateral regional counsels. 7 Among its many activities, commission staff collects position and lapse information to submit to the state personnel data system, helps process bills and payment warrants, and provides accounting and reconciliation for all the state budget categories for the entities. The commission provides a single source of information The Legislature created the Justice Administrative Commission to facilitate the operations of state government. The commission provides a single point of contact from which the Legislature and state agencies can obtain information on the financial, accounting, and personnel activities of the 20 state attorney, 20 public defender, and 3 capital collateral regional counsel offices. The commission also provides a single point of contact for the 43 independent entities to stay abreast of state policies that include not only core issues, such as processing payroll, but also numerous related concerns such as workers compensation and retirement. Commission services support over 5,525 employees in state attorney offices, 2,634 in public defender offices, and 98 in the offices of capital collateral regional counsels. In Fiscal Year , the commission processed 306,817 accounting transactions and 49,226 personnel transactions. Commission work is considered timely and accurate Commission staff is well regarded by the offices it serves for accuracy, timeliness, and expertise. Users consider the commission an effective way to provide consistency, uniformity, and communication of changes in 7 The capital collateral regional counsels provide post-conviction legal services to individuals sentenced to death for their crimes. Two of these regional offices conduct their own voucher payment processing, as does the state attorney office in the 11 th Circuit (Dade County). 6

16 Performance of the Justice Administrative Commission policies and procedures. In its first year of performance-based program budgeting, the commission met its performance outcome goals of receiving no material/substantial audit findings related to its work, processing 99.9% of invoices within the statutory time frame, and maintaining administrative support costs as 0.6% of agency costs and support positions as 0.3% of total agency positions. The commission facilitates essential state functions The Legislature created the commission to facilitate the transfer of essential information between the independent entities and the state. Without the commission, each of the 43 agencies would need to expand its own administrative unit, which would increase overall costs and reduce accountability. While we conclude that the Legislature should continue to fund the commission, 1.4 commission staff positions could be eliminated due to increased efficiencies brought about by technology. 8 Personnel functions are being outsourced Accounting work is being streamlined; 1.4 positions can be cut to save $40,500 annually In the fiscal year, the state is expected to privatize the personnel functions of all executive and judicial agencies. 9 Ten of the commission s 32 staff conduct payroll and human resources functions, as shown in Exhibit 4, and will be subject to this outsourcing plan. The specific impact of the privatization of personnel functions on commission staff is not known at this time. The commission has also taken steps to streamline its accounting work by acquiring an automated system to reduce data entry. Our analysis of the workload for the accounting staff devoted to data entry and related duties for voucher processing indicates that this technology upgrade will reduce the workload of the seven accountants that currently enter this data. As a result, it appears that once the new accounting software is implemented, 1.4 positions may no longer be needed for this accounting work. We recommend that these 1.4 positions be eliminated beginning in the fiscal year, which would provide annual cost savings of $40, OPPAGA s analysis is based on commission estimates of time spent on voucher processing activities. The commission estimates the impact of workload efficiencies is.5 FTE. The commission could not provide documentation to justify its estimate. 9 One reason for this initiative is to allow the state to avoid the cost of replacing its obsolete personnel data system, COPES. 10 We calculated this savings by determining the average salary of the seven accountants and multiplying it by

17 Performance of the Justice Administrative Commission Exhibit 4 Justice Administrative Commission Organization Chart Executive Director Administrative Assistant I Budget Director Accounting Director Systems Director Payroll Director Human Resources Director Budget Analyst Accounting Coordinator Accountant IV Office Automation Specialist Payroll Specialist III Human Resources Specialist II Budget Analyst Accountant III Accountant III 50% Office Assistant II 50% Vacant Payroll Specialist III 50% Staff Assistant 50% Vacant Budget Specialist I Accountant II Accountant III Payroll Specialist III Accountant II Accountant II 50% Office Assistant II 50% Vacant Payroll Specialist II Accountant I Accountant II OPS Payroll Specialist II Staff Assistant Payroll Specialist II Source: Justice Administrative Commission. 8

18 Chapter 3 Performance of the Offices of s and s Because legal representation is an important and costly activity, the Legislature adopted many performance measures for state attorneys and public defenders. The offices have just completed their first year of operating under performance-based program budgeting and collecting data on these measures. These measures will provide useful information in time; however, because this was the first year, the information was not available to analyze performance trends over time. In addition, some of the measures are highly detailed and not useful for assessing statewide performance, such as the number of experts and witnesses interviewed, and the number of contacts with death penalty inmates. To assess state attorney and public defender performance, we focused on available data that assesses whether these public sector attorneys! provide effective legal representation;! provide services at a cost that is comparable or less than the private sector; and! process and keep up with the caseload. Quality of legal representation. The Legislature established two measures that indirectly assess the effectiveness of counsel across the offices: attorney turnover and substantiated Florida Bar grievances. The Justice Administrative Commission also tracks attorney retention. The attorney turnover and retention measures reflect the assumption that the quality of legal representation increases with experience. The performance measure concerning grievances assesses the quality of attorney work and ethics, and is based on grievances filed with the Florida Bar against state attorney and public defender staff. The Florida Bar reviews and investigates grievances, and may take professional disciplinary actions against attorneys with substantiated claims. Turnover is high The turnover rate for state attorney and public defender staff is high. According to Justice Administrative Commission records, the turnover rate for Fiscal Year was 22% for assistant state attorneys and 23% for assistant public defenders. 11 Only 54% of assistant state attorneys and 11 Assistant public defenders and assistant state attorneys are not classified as career service. As such they are not included in the Department of Management Services data on career service turnover. If they had been included in the comparison, they would rank among the five highest turnover rates in state government. 9

19 Performance of the Offices of s and s 46% of assistant public defenders are retained for three years or more from date of hire. A statewide standard had not been set for these measures. High turnover has negative effects High turnover is a concern. Continual turnover reduces the level of experience of staff. And, when positions are vacant, the caseloads of other attorneys increase. Even after the vacancies are filled, experienced staff must allocate time to training new staff. High turnover is common among new attorneys in all types of jobs. A 2000 study by the National Association of Law Placement analyzed turnover data on nearly 5,500 lawyers from the graduating classes of The study found 8.3% of new associates depart their law firms before the end of the first year, and 38.3% depart by the third year of employment. However, the turnover rate in state attorney and public defender offices, as noted above, is higher than this national rate. The negative effects of attorney turnover are more pronounced in state attorney and public defender offices because less experienced attorneys form a high proportion of their staffs. Despite the high turnover, the state attorneys and public defenders performed well in the second legislative measure that assesses the quality of legal representation. The two types of offices each reported one instance of a substantiated Florida Bar grievance in the fiscal year. The performance standard for this measure was zero substantiated grievances; however, two cases for 8,159 attorney positions is not cause for concern. Salaries are lower than state agency or private attorney salaries Legal representation costs. In addition to providing effective counsel, the cost of public legal representation should generally be comparable to or less than the private sector. We found state attorney and public defender salaries are lower than state agency attorney salaries, as well as private sector salaries. The starting salary for an assistant state attorney or public defender varies throughout the state; according to a recent study the average starting salary for public defenders is $31, This salary is less than the $35,055 starting salary of state agency attorneys, and is thought to contribute to the high turnover rate. To address this situation, during the 2001 session the Legislature directed that the starting salary for both assistant state attorneys and assistant public defenders be raised to $35,931 effective January 1, This new starting salary will put the assistant state attorneys and public defenders in line with other state agency attorney salaries. However, as shown in Exhibit 5, these starting salaries will remain less than other public and private sector attorney starting salaries. 12 Florida s Comparative Salary Analysis, February 2001, MGT of America, Inc., commissioned by the Florida Association, Inc. 13 Chapter , Laws of Florida. 10

20 Performance of the Offices of s and s Exhibit 5 and Salaries Are Less Than Many Other Public and Private Sector Attorneys Attorney Type Starting Salary s and s (current) $31,465 Florida State Agency Attorneys 35,055 s and s (effective January 1, 2002) 35,931 City Attorneys 47,170 County Attorneys 48,486 Private Florida Attorneys 50,000 Private Firms Nationwide (median) 95,000 Sources: 2001 National Association of Law Professionals Entry-level Associate Salary Survey; Florida s Comparative Salary Analysis, MGT of America, Inc. Public attorneys are less costly than outsourcing One policy question that is often raised is whether it would save money to outsource more legal work, particularly for public defender cases. However, at $25 an hour, including benefits, the new salary rate is significantly lower than the $50 to $75 rate the counties pay private attorneys to represent defendants when public defenders cannot take a case due to an ethical or workload conflict. Volume of work is driven by the crime rate Caseload management. Case activity is another important component of attorney performance. The state attorneys and public defenders report on many performance measures concerning caseload. The most useful performance measures are volume and disposition of cases, because they provide a good picture of workload. The biggest drivers of case volume are external factors such as crime rate and community standards. However, the way cases move through the court system also reflects numerous strategic and tactical decisions made by the state attorneys and public defenders, such as whether a state attorney diverts an offender to a pre-trial program or the defendant accepts a plea agreement. The complexity of this legal environment is reflected in Exhibit 6. 11

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22 Performance of the Offices of s and s Referrals and dispositions will be useful measures Case volume, or the number of cases coming into state attorney and public defender offices, can be used in a general way to compare the amount of work of one office to the others. 14 For the fiscal year, both the state attorney and the pubic defender standards overestimated the number of referrals they would receive. It is important to recognize that the work performed on a case by state attorneys differs from the work performed by public defenders. State attorneys must decide whether to file a charge and proceed with a case, and they charge defendants who are represented by private attorneys as well as public ones. Public defenders represent only indigent clients and handle appeal as well as trial cases. The data generated on the number of state attorney cases that are completed, or disposed of, in various ways will also be useful because it will allow a more thorough understanding of the workload. For example, cases disposed of by pleas are generally less work than those disposed of by trial, although in some cases the plea is entered the day of the trial and the same preparation is required. Actual dispositions differed from the standards: 14 state attorneys took fewer cases to trial than expected. A standard was not set for public defender dispositions. The primary benefit of case referral and disposition data will be that it can be used to compare trends of numbers of cases over time. For example, over time the cases coming into an office can be compared to the cases disposed of to help determine whether a backlog of cases is building up. 15 Because the data has only been collected for one year, trend analysis cannot be conducted at this time. One reason for the variations between the standards and the actual data for the referral and disposition data may be that the measures and standards were new; agencies often revise their standards during their second year of performance budgeting as they develop historical information. The number of measures should be reduced We recommend that the state attorneys and public defenders keep detailed performance measures as internal measures to be provided to the Legislature upon request, and that the Legislature direct the state attorneys and public defenders to report annually on the reduced number of measures listed below. For both state attorneys and public defenders:! Annual attorney turnover rates! Percentage of staff retained for an average of three years from date of hire 14 In addition to reporting cases, public defenders report the number of clients they represent. The number of clients differs from the number of cases because in a single case multiple defendants may be charged or a single client may be involved in multiple cases. 15 The length of time it takes to complete cases is also needed to assess backlog. 13

23 Performance of the Offices of s and s! Number and percentage of substantiated Florida Bar grievances filed annually! Number and percentage of dispositions by trial verdict, plea, non-trial, and otherwise For state attorneys:! Number of referrals for felony, misdemeanor, and juvenile cases! Average number of referrals per attorney for felony, misdemeanor, and juvenile cases For public defenders:! Number of clients served for felony, misdemeanor, and juvenile cases! Average number of cases per attorney for felony, misdemeanor, and juvenile cases! Number of felony, misdemeanor, and juvenile cases represented 14

24 Chapter 4 Improving the Operations of State Attorneys and s We identified several opportunities to increase the efficiency and effectiveness of state attorney and public defender operations through! better integration of technology;! more economical access to online research;! enhancing or eliminating the work of indigency examiners; and! reclassification of some laws. Better integration of technology is essential Technology provides many benefits Integrating criminal justice technology can reduce costs and improve efficiency. Most computer systems operated by the numerous participants in the criminal justice system are not integrated to communicate with each other. Higher levels of technology integration provide several benefits, including! eliminating duplicative entry of common data by multiple offices;! reducing the opportunity for data entry errors;! allowing cost sharing of programming changes and technology staff;! allowing staff to perform other work; and! enhancing the timeliness of information sharing. Integrated technology is important in the criminal justice system because so many offices gather and use the same information. The less technology is integrated, the more duplication occurs in the system. For example, a law enforcement officer takes basic information at the time of arrest, including a defendant s name, address, Social Security number, and crimes charged. The clerk enters the same information for the court. The state attorney and public defender also enter this information for their records. Each office bears the cost for entering the same information. However, if the computer systems used by the different offices are integrated, then information from law enforcement records can be used to create case records for the other offices. The level of technology and integration varies among circuits The level of integration in state attorney and public defender offices varies from circuit to circuit. Those circuits that are most integrated, such 15

25 Improving the Operations of s and s as the 6 th and 11 th circuits, have systems that pull data from the clerk of court s office or the jail to populate fields in the state attorney s database. The state attorney adds information and forwards it to the public defender s office. Each office is protected by software firewalls that limit or refuse access to other parts of the system. At the other end of the technology spectrum, the offices maintain records manually or if they use automated systems, maintain duplicative records with each office doing its own data entry. Most circuits fall somewhere between total integration and none, as shown in Exhibit 7. Connectivity between public defender and state attorney offices is common. And, state attorney offices are generally more integrated with more other participants in the criminal justice system than the public defenders. One reason for this may be concern by some law enforcement offices about protecting information from offices that are adversaries in the judicial system. Exhibit 7 In Most Circuits, Technology Is Integrated to Some Degree Not linked to other offices Linked with public defender Linked with clerk of courts 1, 2, 6, 8, 9, 11, 4, 6, 9, 11, 12, Circuit 3, 5, 7, 16, 19 14, 15, 20 13, 17, 18, 20 Not linked to other Linked with state Linked with clerk offices attorney of courts 3, 4, 5, 7, 10, 12, Circuit 13, 16, 17, 18, 19 Source: OPPAGA survey of state attorneys and public defenders. Linked with jail 4, 6, 9, 10, 11, 12, 13, 17, 20 Linked with jail 1, 2, 6, 8, 9, 11, 14, 15, 20 1, 6, 11, 20 1, 6, 11, 20 There are several impediments to integration Several factors discussed below impede full integration of criminal justice information systems. Control issues. Some offices may be concerned that they have to give up control of their technology if they are part of an overall technology system that serves multiple users. However, we do not believe this concern is valid. It is not necessary for each office or circuit to use a single system, as long as the software chosen permits the transfer of essential information among entities. Lack of county infrastructure. Small counties in particular often lack the necessary elements of technology to allow for the integration of offices. In these counties, it will be important for the state attorneys and public defenders to work closely together, and with other entities including the 16

26 Improving the Operations of s and s Planning for integration of technology is vital clerks of the court and judiciary, to ensure that limited resources are leveraged to the maximum extent possible. 16 Multiple counties and clerks offices. Technology needs to be integrated not only among offices within a single county but also among counties within multiple-county circuits. The integration of all criminal justice entities within judicial circuits, including sheriffs offices and the clerks offices, should be the ultimate goal of integration. However, integrating the state attorney and the public defender offices, which work on cases involving the same defendants, is a higher priority and should be the immediate goal. Cost. Offices that have already developed systems may be unwilling or unable to afford changing a system in which they have made great investments. Currently no plan, schedule, or funding strategy has been developed for an integrated system. We recommend that the Florida Prosecuting Attorneys Association and the Florida Association work with the Legislature s Joint Article V Committee to develop a plan and schedule for integrating technology, first within the state attorney and public defender offices and then within and among the circuits. 17 State attorneys and public defenders could reduce electronic legal research costs Books and CD-ROMs have become obsolete Ready access to up-to-date legal research resources is critical for attorneys. Since the court rules on the basis of previous case decisions as well as law, lawyers need to be able to research the continually evolving collection of judicial decisions. The general method of conducting legal research has evolved from books to CD-ROMs to online services. Casebooks require constant updating and a considerable amount of space, increasing the amount of space needed to maintain each office. CD-ROMS require far less space, but they are being phased out because the vendors are not planning to update their software. Online subscription legal research services provide nearly instant access and updating, and have no local space requirements. The factor limiting widespread state attorney and public defender use of online legal research has been the cost. Online legal research costs have run over $100 per person per month, primarily due to the relative non-competitiveness of the providers in Florida. These costs have forced some state attorney and public defender 16 The Public Records Modernization Trust Fund, which the Legislature established in 1987 for clerks of the court to enhance technology for public records, may be a source of technology integration funds. 17 As described in our Many Article V Trial s Funding Issues Remain to Be Resolved, Report No , November 2001, this information system should include local law enforcement, clerks of the court, the court, the Department of Justice, and the. 17

27 Improving the Operations of s and s offices to purchase only limited access to online services or forgo it altogether. However, we found that the state attorneys and public defenders may be able to increase access and obtain better rates on legal research through taking advantage of increased competition and creating a negotiating consortium. Increased competition should lower prices Better prices may be available as a result of increased competition. West Publishing Company has held a majority share of the market with its online research service, Westlaw. However, another research company s online subscription product, LexisNexis, has become more competitive in Florida in the past year by revising its service to include some new features such as case summaries for quick review. As both companies compete for the state s legal research market, we expect the prices of the services to come down. The current state contracts for online services have been negotiated through the Department of Management Services by the Office of the Attorney General. The contracts contain a myriad of pricing options which are confusing to interpret. Current state attorney and public defender contract prices range from $50 to $150 per password per month, depending on the breadth of the services ordered and the interpretation of the state contract. The average cost to the offices per password per month is $73. At the present time, online legal research, which is primarily through Westlaw, costs the offices approximately $550,000 annually. 18 The state attorneys and public defenders have begun working as a group to share information about legal research options and costs. By pooling their purchasing power and negotiating as a group with both providers, it is likely that the rate for online legal service can be reduced substantially. The court has negotiated a group purchase of online legal services in the $30 per password per month range. If the state attorneys and public defenders negotiate a similar rate, they will save over $300,000 annually. We encourage the state attorneys and public defenders to take advantage of group purchase prices so as to reduce costs. These reduced prices may permit offices that limited or did not have online service to expand or obtain it. We note that other entities, such as the capital collateral regional counsels, could also benefit from participating in the user group. 18 This does not include the cost of the CD ROM legal research tools, which some offices use exclusively, and others use in conjunction with online services. 18